The revision contains a correction that, though likely not of interest to general readers, is worth noting for scholars on this subject. A key English statute is the act of 4 Geo. II, ch. 21, which gave "natural born subject" status to persons born abroad whose fathers were natural born English subjects. I had been persuaded that the correct date for this statute was 1730 (although previously in my long article on the meaning of natural born I gave the date as 1731). Thus the prior draft of the short essay gave the date as 1730. However, after outstanding research assistance from the USD law school library staff, I am again persuaded (conclusively this time!) that the date is 1731. This source indicates that the fourth session of the first parliament of George II began on January 21, 1731, and thus all statutes of the fourth regnal year of George II were passed in 1731. Thus the new revision of the essay gives the date as 1731.

In my defense, I'm not the only one to get confused here: Henry Henriques, in his classic treatment of U.K. nationality law "The Law of Aliens and Naturalization," gives the date of the act of 4 Geo. II, ch. 21 as 1730 (on pp. 35-36). Moreover, the fourth regnal year of George II began in June 1730, so I can see why one might think statutes from the fourth regnal year should be dated 1730. But I'm now convinced Henriques was wrong (a further warning about relying too much on secondary sources).

This Article tells the story of the English Habeas Corpus Act of 1679, which came in direct response to perceived failings by the royal courts and the common law writ to do enough to check executive excess at the expense of individual rights. Unearthing the story of the backdrop against which the Act was passed and tracing its role in English law going forward reveals that the Act was enormously significant in the development of English law’s habeas jurisprudence — far more so than most jurists and scholars recognize today. Further, extensive evidence of the Act’s influence across the Atlantic dating from well before, during, and after the Revolutionary War demonstrates that much of early American habeas law was premised upon efforts to incorporate the Act’s key protections rather than developed through judicial innovation. Further, there is every reason to believe that the Act, along with its suspension by Parliament on several occasions in the late seventeenth and eighteenth centuries, established the suspension model that the Founding generation imported into the United States Constitution’s Suspension Clause. Accordingly, in tracing the Anglo-American development of habeas corpus jurisprudence, it is important to account for the statutory roots of the habeas privilege, particularly because statutory developments were designed in important respects to alter and constrain the common law courts’ approach to habeas corpus and harness the common law writ toward specific ends.

How many of these are originalist-oriented? Time permitting, I will try to offer some assessments over the next few weeks.

Incidentally, I hope that liberal law professors and commentators who have argued for the Senate's duty to vote promptly on Supreme Court nominations will continue to do so once President Trump makes a nomination (yes, that means you, Dean Chemerinsky). And I hope that conservative law professors and commentators who have said that the short-handed Court is no big deal will continue to think so after January 20.

RELATED: Thoughts on Trump and the Court here, from James R. Rogers at Liberty Law Blog.

11/09/2016

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute or regulation. It makes two contributions.

First, it shows the causes of the current problem. The national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. But the forum-shopping and other problems associated with the national injunction depend on something older and more structural: the shift from one chancellor in England to many “chancellors” in the federal courts.

Second, this Article proposes a single clear principle for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. The basis for this principle is traditional equity, in line with the rule that the federal courts must trace their equitable doctrines to that source. To put this principle into practice, several specific reforms are suggested, ones that the Supreme Court could adopt through an exercise of its supervisory jurisdiction.

If it's correct that national injunctions exceed the powers of traditional equity, couldn't the point be put even more strongly: national injunctions exceed the federal courts' "judicial Power" under the Constitution's original meaning?

11/08/2016

In the current issue of the Georgetown Law Journal, Jeffrey Pojanowski (Notre Dame) & Kevin Walsh (Richmond): Enduring Originalism. From the introduction:

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, originalism is not the law and perhaps should be abandoned in favor of what is.

The positive turn points in the right direction but, we argue, does not go far enough. To be sound and complete, a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds. Without conceptual and normative anchors, positive-law originalism is subject to drift in a jurisprudential sea in which “whatever is, is law.” An appropriately anchored theory depends on a defensible concept of the Constitution as positive law to justify a normative conclusion about how faithful participants in our legal system ought to interpret it in developing constitutional law. This Article explains how the classical natural law tradition of legal thought, which is also the framers’ tradition, supplies a solid jurisprudential foundation for constitutional originalism in our law today.

The particular type of constitutional originalism we propose understands the Constitution as enduring original law that remains fixed and authoritative until lawfully changed. Because the Constitution is law, its adoption into our legal order gave rise to new law. This original law of the Constitution consisted of all the propositions of law that became valid by virtue of the addition of the Constitution to the rest of the law then in effect. The form of constitutional originalism that we argue for, then, is a form of “original-law originalism,” or what might be called enduring original-law-ism.

...

(Previously noted in draft here, and before that it was a paper at the February originalism works-in-progress conference).

Those of us who support strict constitutional limits on executive power do so in part because we fear the concentration of power in the hands of the president more than we fear “gridlock” if Congress and the president are at odds. To libertarians like myself, this is an easy call, because I never like or trust the president. But it’s more difficult for those who are strong Democrats or Republicans to see the virtue of limits on executive power, in particular when a president of their party is in office.

So now is a good time ... to think about how much power you are willing to lodge in the executive, knowing that whatever power you deny a possible President Trump, you would also be denying a President Clinton or future Republican president [Ed: And, of course, what executive power you would be willing to give a President Clinton, you would also be giving a President Trump]. Don’t just think about it; consider the various executive-power controversies that arose in the Bush and Obama years, and write down, with a possible Trump presidency in the back of your mind, which side had the better argument. And next time “your” president, Republican or Democrat, is in power, pull out what you wrote on Nov. 2, 2016, and stick to it.

I like this idea a lot. My views are pretty well written down already, and I intend to stick with them (as I mostly have, I think, through the Bush and Obama presidencies) ... unless, of course, I change my mind, which a scholar must always be open to doing.

Also, I don't support "strict constitutional limits on executive power." I support the Constitution's limits on executive power, which I think are pretty well calculated to strike a balance between too much and too little executive power. (See The Goldilocks Executive).

Against all hope for change, President Barack Obama has been a war president and a vigorous one at that. This Article considers the legality of his uses of force in Libya and against ISIS. When the President waged war against Libya in 2011, he acted contrary to the Constitution and its allocation of the declare war power to Congress. In simple terms, the President unconstitutionally declared war against Libya. Moreover, the aerial bombardment of Libyan forces constituted hostilities under the War Powers Resolution. Given that Resolution’s time constraint on hostilities, the President’s failure to halt the war against Libya infringed that Resolution. With respect to ISIS, however, I believe that the President’s continuing war is legal. The 2001 Authorization for Use of Military Force sanctions the use of necessary and appropriate force against those organizations that conducted the 9/11 attacks. Because al Qaeda perpetrated the 9/11 attacks, when the predecessor of ISIS joined al Qaeda in 2004, the predecessor thereby made itself a lawful target under the 2001 Authorization. Though ISIS splintered from al Qaeda in 2014, it retains the stigma of its former association with al Qaeda and remains subject to uses of military force by the United States.

An outstanding analysis which I read in a prior draft. I agree about Libya, but I don't agree on ISIS. My perspective is here: Constitutional War Initiation and the Obama Presidency. As to ISIS, I think authorization of the use of force must rest either on the 2002 authorization to use force in Iraq or on the President's independent authority to use force in response to attacks.

11/05/2016

[T]he advice of prudence must be, to embrace the lesser evil; and instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences….

The post continues:

If our constitutional system is to be lost, then it will likely be lost because of citizens who decline to pick the lesser evil, and likewise decline to pick the greater good, and instead waste their votes. So I urge people to either vote for Trump, or for Clinton, whomever you think is the lesser evil, or the greater good, but please do not sit this one out, or vote for someone who has no chance.

To my mind, that statement is deficient because it fails to argue — and fails even to claim — that Hillary Clinton represents the lesser evil in this election, or that she represents the greater good, or that she deserves their votes or my vote. The United States has a long history of supporting the lesser evil (e.g. Stalin v. Hitler) ...

It seems straightforward. A judge takes a law, sets it next to the Constitution, and determines whether the “latter squares with the former.”

There is a long tradition, however, arguing that this view, while straightforward, accords judges too much power over legislatures. Harvard law Professor James Bradley Thayer, whose views influenced the “Harvard justices” notably Oliver Wendell Holmes, Felix Frankfurter, and Louis Brandeis, argued that judicial review does not invite straightforward application of a judge’s own determination whether a law squares with the Constitution. Rather, he argued, judicial judgments of constitutionality should be decisions whether a legislator could have had a reasonable (or rational) basis for thinking that a law was in fact constitutional.

On judicial review as a moral hazard:

In addition to a few other arguments, Thayer articulates what today might be termed a “moral hazard” rationale for opposing judicial activism, that is, for opposing anything but deferential judicial review.

“Moral hazard” is a phrase originating with the insurance industry. It refers to the possibility that insuring against costly outcomes actually increases the reckless behavior creating the need for insurance in the first place. For example, insuring against automobile accidents might induce some drivers to drive more recklessly because, with the insurance, drivers no longer pay the full cost of the accidents they’re in.

Judicial review can be thought of as a form of insurance for legislatures enacting constitutionally-questionable statutes. The result of judicially insuring against unconstitutionality, for Thayer, is that it invites legislatures to increase their constitutional recklessness relative to their behavior without judicial review. He notes the irony that “It has been often remarked that private rights are more respected by legislatures of some countries which have no written constitution, than by ours.”

The irony for Thayer is that judicial enforcement of rights might actually decrease their overall security relative to systems of legislative supremacy.

To be sure, there are many empirical claims and behavioral assumptions in Thayer’s argument. Simply because Thayer claimed something doesn’t make it true. And I’d want more than anecdotal evidence from my students before concluding that the type of judicial review we have in the U.S. today is a net loss for republican liberty.

Concluding:

I do wonder, however, whether today’s “two-tiered” judicial review, where courts review economic regulations (very) deferentially while subsets of rights judges designate as fundamental (such as speech or privacy) continue to be protected rigorously, might be worse overall for protecting liberty against legislative encroachment than consistency at one extreme or the other.

11/04/2016

Lisa P. Ramsey (University of San Diego School of Law) has posted A Free Speech Right to Trademark Protection? (106 Trademark Reporter 797 (2016)) on SSRN. Although not originalist in methodology, the article highlights an issue (now pending before the U.S. Supreme Court in Lee v. Tam) that poses an interesting challenge for originalists. Here is the abstract:

This Article explores whether the right to freedom of expression requires governments to register trademarks that are immoral, scandalous, disparaging, or otherwise offensive. Many nations ban the registration of offensive marks, including the United States for the last 100 years. In the U.S. Federal Circuit’s 2015 en banc decision in In re Tam, which involved an appeal from the U.S. Patent and Trademark Office’s refusal to register the mark THE SLANTS for an Asian-American rock band, the court held the disparagement provision in Section 2(a) of the U.S. Lanham Act violated the Free Speech Clause in the First Amendment of the U.S. Constitution. The U.S. Supreme Court has now agreed to address the issue.

This Article first contends that international law does not require U.S. and foreign courts to recognize a free speech right to trademark protection of offensive marks. It then argues that courts and commentators often do not raise and correctly evaluate all of the issues that may arise in a free expression challenge to a trademark law. The Article provides a framework–a list of “elements” required to establish a free speech violation–that can be used to evaluate whether a trademark law violates the right to freedom of expression in a nation’s constitution or human rights treaties. This framework is then applied to the provision in Section 2(a) of the U.S. Lanham Act banning registration of marks which are immoral or scandalous, or which may disparage others, with the resulting conclusion that Section 2(a) is constitutional.

So how should originalists approach the question? I assume the first step is to ask whether this issue ever came up in the founding era -- that is, whether there is evidence that governments denied trademark protection to offensive (or otherwise inappropriate) marks. If they did, and no one seemed much bothered by that, I would find that essentially conclusive: the "freedom of speech" would not then have included the right to trademark protection, and so refusing to protect certain marks would not "abridge" it.

But assume the issue never came up (as far as I know, it didn't). Now I think originalists would be in something of a bind. Not only is direct historical evidence lacking, but I'm not able to think of any close (or even not-so-close) analogies to controversies or practices that were going on in the founding era. Who wins would then turn to a significant extent on who has the burden of proof. But who does? Must the trademark claimant show that trademark protection was part of the freedom of speech, or must the government show that it was not part of the freedom of speech?

I don't think originalism has a clear answer, or even a consensus framework for approaching the question. One might say, as Richard Kay seems to say in this outstanding essay that the burden is always on the claimant to show a constitutional violation. The claimant, however, will respond that the First Amendment's absolute terms are sufficient to do so. True, we know the First Amendment isn't absolute; lots of things that seem like free speech to us were not part of the founders' understanding of "the freedom of speech." But shouldn't the plain text be enough to shift the burden to the government to show that something that looks like an abridgment of the freedom of speech actually isn't?

Or perhaps this is a situation where original meaning "runs out" and we must resolve it according to some other principle.

Professor Ramsey's article offers one other escape. Although she does not go back to the founding era, she does cite (p. 810 & n.42) an 1873 treatise stating that "[t]o be a ‘lawful trade-mark’ the emblem must not transgress the rules of morality or public policy," which the treatise author called "a rule of universal application." That's at least some evidence that the practice of rejecting offensive marks was historically widespread and noncontroversial. True, this is very weak originalist evidence, as it's far from the founding and also fairly speculative. But perhaps it is better than nothing. And we are hypothesizing that there isn't any other evidence. So in that case, perhaps even weak evidence should prevail.

In any event, I think the case and the article pose a difficult puzzle for originalism.